Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

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Monday, December 8, 2014

Herbert McCabe, OP on the Immaculate Conception

We often remark here at Mirror of Justice that the central questions of Catholic legal theory are those of human anthropology and human nature. (Even if, like Elizabeth Anscombe, I'm not at all sure that [modern] reflection on "the self" is a meaningful or important philosophical question, see Faith in a Hard Ground: Essays on Religion, Philosophy, and Ethics at p. 67.) On what it means for said human nature to be redeemed, here is an excerpt from a homily by my late friend Herbert McCabe, OP on today's feast:

In Mary the redemption reaches down to the roots. In us it is not yet radical, but through our death in Christ and our resurrection in him it is to become so. So far we are only sacramentally redeemed, in the sacramental death and resurrection of baptism - this is something real, it is not merely play-acting, but it is only sacramental, it is not yet in our flesh. The redemption of Mary is pre-sacramental, she does not need baptism or Eucharist, she needs Christ only and has him in her existence in her very flesh. For this reason her redemption, which is pre-sacramental, is a sign and foretaste of the post-sacramental, the life of the risen body, the future kingdom. Her Assumption is the beginning of the resurrection of all who are taken up into Christ’s resurrection.

This, then, is how we are to cash the doctrine of the Immaculate Conception. This is the difference in practice that the doctrine makes. We are not to look for this difference in the biography of Our Lady, in her character or in her behaviour. In this sense the doctrine is not about that. It is not, for instance, about the fact that she committed no sin. You could hold, as Thomas Aquinas did, that she was sinless and still deny, as he did, the Immaculate Conception. The Immaculate Conception does not make that sort of difference to Mary; it did not make any noticeable difference to her - as I have suggested there is no reason to suppose that she knew about it. What it makes a difference to is our understanding of what it means for her to be redeemed and therefore what it will eventually mean for us to be redeemed. To assert this doctrine is to assert the mysterious fact that our holiness will not stop short of the roots of our being, that we too are to become radically holy. 

And this is a strange doctrine. At the moment we are forgiven sinners; we are forgiven but we are people who have been sinners, we have been subject to the sin of the world, moreover we have at times opted for the sin of the world. Both things are true: we have contrition for our sins even as we celebrate our forgiveness. Being realistic and honest and therefore contrite about our sins is the sign and result of our being forgiven. (That is why confession is an important part of the sacrament of Penance.)

What we celebrate on the feast of the Immaculate Conception is that Christ’s love for us brings us further than this. What he wants for us is not just that we should be forgiven sinners but that we should be as though sin had never been. Redemption for us will involve a rebirth from an immaculate conception. Our redemption will not just be the successful end of a journey, the triumphant culmination of the history of man, but in some utterly mysterious way we will be freed from our history, or our history will be taken up into some totally new pattern in which even our sins become part of our holiness. We will somehow be able to accept them as God accepts them. There will be no more sorrow for sin, no more remorse over the past, no more contrition; we will be radically and totally free: ‘And all things shall be well and all manner of things shall be well ... when the fire and the rose are one’ (God Matters, pp. 213-14).

December 8, 2014 in Moreland, Michael | Permalink

Thursday, December 4, 2014

Scarisbrick on God's Traitors

A good bit of our understanding of religious freedom and establishment is shaped by the legacy of reformation, restoration, persecution, and toleration in Tudor and Stuart England, and so along comes historian J.J. Scarisbrick in the Weekly Standard with this review of Jessie Childs's God's Traitors: Terror and Faith in Elizabethan England (Oxford UP). A short excerpt is pasted below. As an aside, Scarisbrick is a remarkable figure in his own right--the author in 1968 of the definitive biography of Henry VIII (which inaugurated the revisionist view of Eamon Duffy and others arguing that the English Reformation was not all light and progress) and, along with his wife Nuala, one of the founders of the British pro-life movement.

[W]hat a story [God's Traitors] tells: plots and counterplots, assassinations and Armadas, horrendous torture and unspeakably gruesome executions, stinking prisons, secret messages written in orange juice (invisible until heated), spies and traitors and clandestine printing presses. Hollywood could not have made it up.

Jessie Childs is not Roman Catholic, but she is remarkably fair and astute in her judgments and (though she should not say that Catholics believe that the Eucharistic presence is a physical one) has a deep understanding of Catholic culture. She understands how bewildering it was for Catholics to find that the faith of their forefathers (and of English kings and queens since time immemorial) was now treason and that they apparently had to choose between queen and pope—let alone between queen and the king of Spain, who conveniently believed that Holy Mother Church was best served by Spanish imperialism.

December 4, 2014 in Moreland, Michael | Permalink

(Qualified) Admiration for Thomas Hobbes

Thomas Hobbes died on this date 335 years ago in 1679 (aged 91--a remarkably long life for someone in the seventeenth century!), allegedly uttering "Now I take a great leap in the dark." I have read Leviathan in a first-year elective on justice for several years now, and I am continually amazed by the sheer brilliance of the book and regard it as among the great works of our civilization. Every student of the law should, I think, grapple with Hobbes's insights into human nature, political power, and the origins of law, even if one must (as I do) disagree in the end. The great Catholic philosopher Peter Geach was also an admirer of Hobbes, and here is a bit from his splendid paper "The Religion of Thomas Hobbes" (contrary to the conventional view that Hobbes was a closet atheist, Geach argues that Hobbes was a heterodox Christian):

The writings of Hobbes manifest a quality that he shares with certain other writers: with Thucydides, with the Old Testament historiographers, with Schopenhauer in some works. All these writers have the power to present drily, without rhetorical condemnation, what men can be like and under stress often are like: that is, pretty nasty. Men go in for self-flattering illusions and dislike authors who hold up a mirror to the ugly human face. As the epitaph says, few have loved Thucydides son of Oloros (of course he did win the love and admiration of Hobbes); abuse of Schopenhauer, as of Hobbes, is a commonplace; Msgr Knox found Old Testament histories hard to take. Splutters of disgust and indignation against these authors who have dared to tell the truth are often grimly comic in their effect; reality has a way of vindicating the truth-tellers against the flatterers. As the song says, if you break the bloody glass (sc. barometer) you won't stop the weather.

December 4, 2014 in Moreland, Michael | Permalink

Friday, November 21, 2014

Matthew Rose on "Tayloring Christianity"

Charles Taylor is rightly regarded as one of the great philosophers of the age, Catholic (as he happens to be) or not. I much admired his 1992 tome Sources of the Self and regard some of his earlier papers as essential contributions to contemporary political and social theory (see, eg, the paper "Atomism" in volume 2 of his Philosophical Papers). But I found his widely renowned and commented upon A Secular Age (2009) frustratingly diffuse. I also had a hunch that the cultural diagnosis (and remedy) of my former teacher Alasdair MacIntyre was more acute but couldn't quite put my finger on the differences between Taylor and MacIntyre. Along comes my friend Matthew Rose with this splendid essay at First Things on Taylor. Here is an excerpt from Rose's conclusion, but read the whole thing to appreciate the range of his deep and critical engagement with Taylor:

The failure here is not that Taylor sets aside the authority of dogma and discourages us from entering more deeply into the wisdom of the Christian past. That’s something we’re all familiar with, not just in our secular culture that can do without the Church’s teaching, thank you, but in our own thinking as well. Taylor rightly describes our experience of modern faith as riven with contingency. Those committed to the Church have lots of interior ways to set aside the authority of dogma, even as we affirm it.

No, the failure is much greater and potentially more debilitating. By assimilating a secular way of believing with the essential content of Christian faith, A Secular Age sanctifies and makes absolute precisely what we should regard as contingent—the age in which we live. This is not to say that much of what Taylor writes about the ways secularity has altered our culture and our sense of self is wrong and should not shape academic debates. His descriptions of the secular age are compelling and deserve the wide discussion they have inspired.

But if it is true that we have reached the end of an era and now live in a secular age, it will be even more important for Christians to know what has been lost and why. This Taylor will not and perhaps cannot teach us. Instead, he makes secularism invincible to the radical criticism it most needs. Like all Hegelians, Taylor is an apologist for the present, a theologian of the secular status quo.

Alasdair MacIntyre also diagnosed our culture as fatigued by the mutual antagonisms of rival traditions. MacIntyre, however, maintained a chastened confidence in the power of human reason to guide us toward the perfected understanding that is the end of all inquiry. Our confusions and disagreements, he wrote in his Gifford Lectures, “can be a prologue not only to rational debate, but to that kind of debate from which one party can emerge as ­undoubtedly rationally superior.”

MacIntyre combated the prejudice, uncritically affirmed by Taylor, that secular modernity is a historical dispensation from which there is no intellectual escape. He called his work a “radical renovation” of classical traditions of thought. Its most important consequence has been a growing confidence that the work of human reason can be undertaken in a context broader than that of modernity.

We would do well to listen to Taylor, but apprentice ourselves to MacIntyre. For Christians in a post-Christian culture will need to think in terms of the most expansive of all temporal horizons—a time, bounded by the beginning and the end of God’s holy purposes, that Augustine, writing at the end of another ­epoch, called the saeculum.  


November 21, 2014 in Moreland, Michael | Permalink

Wednesday, November 19, 2014

Mumford on the Notre Dame Center for Ethics and Culture's Conference on Poverty

I am late posting about this, but the recent conference at the Notre Dame Center for Ethics and Culture, "Your Light Will Rise in the Darkness: Responding to the Cry of the Poor," was a superb event that reflected the best thinking from a range of disciplines on the issue of poverty. The keynote addresses by Nobel Laureate James Hickman, Alasdair MacIntyre, John Finnis, and Gerhard Cardinal Müller were rich in insights from economics, philosophy, and theology, as were the breakout sessions. I can do no better than this summary from James Mumford (University of Virginia Institute for Advanced Studies in Culture). A bit from Mumford's conclusion:

One lasting impression of Notre Dame’s “Your Light Will Rise” conference was the way that Catholic social teaching—from Leo XIII’s famous encyclical Rerum Novarum (1891) onwards—defies the left-right axis. Thus, in interview Cardinal Gerhard Müller, the prefect of the Vatican Congregation for the Doctrine of the Faith, could on one hand speak of the necessity of “facing head-on the effects of a system that places profit at its center,” while on the other emphasizing that Pope Francis’s conception of poverty “[goes well] beyond a merely economic conception of poverty.” For his part, Patrick Deneen, the political thinker who shone in the debate that closed the conference, came at capitalism from a conservative standpoint, lamenting, among other things the loss of tradition and the anonymity of markets.

This defiance of the left-right axis, so clearly on view in Notre Dame last week, suggests not only why Catholic social thought has so much further to run. It also suggests why, given how fed up a growing part of the electorate is with the level of political polarization, Catholic social thought should be increasingly heard.

November 19, 2014 in Moreland, Michael | Permalink

Monday, November 3, 2014

Moreland on Interpreting Pope Francis: Evangelization and the Family

My friend and colleague (as we are wont to say) Anna Bonta Moreland of Villanova (forgive the boasting of a proud husband) recently delivered a lecture at the University of Chicago's Lumen Christi Institute on "Interpreting Pope Francis: Evangelization and the Family" (available here) and a lunchtime talk "A Guide to the Thought of Pope Francis" (available here).

November 3, 2014 in Moreland, Michael | Permalink

Mary Ann Glendon to Receive Villanova's Civitas Dei Medal: November 5, 2014

Villanova University will present its third annual Civitas Dei Medal to Mary Ann Glendon, Learned Hand Professor of Law at Harvard Law School, this Wednesday, November 5 at 4:30pm in the Driscoll Hall Auditorium. Professor Glendon will deliver a lecture on "Religious Freedom in a Secular Age," and the University President, Father Peter Donohue, OSA will confer the award. The previous recipients of the Civitas Dei Medal are Alasdair MacIntyre (2012) and John Noonan (2013). Details here.

November 3, 2014 in Moreland, Michael | Permalink

Wednesday, October 29, 2014

Tinker v. Des Moines and Meyer v. Nebraska

I recently taught Tinker v. Des Moines Independent School District, the famous 1969 student speech case in which the Supreme Court held that the First Amendment protects the right of high school and junior high students to wear black armbands at school to protest the Vietnam War. There’s an odd reliance on precedent in a crucial passage of Tinker, though. Justice Fortas writes:

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.

The authority for this sweeping characterization of half a century of student free speech rights? In the next sentence, Justice Fortas cites Meyer v. Nebraska (and its companion case, Bartels v. Iowa), the 1923 case striking down a state statute prohibiting foreign language instruction (a legacy of anti-German prejudice amid World War I) on the grounds that the Fourteenth Amendment protects the liberty of parents and teachers. (In dissent, Justice Black—ordinarily a free speech absolutist, but not for students—rejects Meyer as a vestige of Lochnerism.) The more obvious (but more recent) cite for student free speech, West Virginia v. Barnette (1943), is part of a string citation later in the paragraph and is discussed more fully in the next paragraph.

I suppose this is as an effort by the Court in Tinker to claim a longer historical precedent for recognizing student free speech, but it’s also an interesting re-reading of Meyer itself, albeit one that engages in rank anachronism and revisionism. Meyer was decided roughly a couple decades before incorporation of the First Amendment against the states, so the Court in Tinker (post-incorporation) is implausibly turning Meyer into a speech case (Justice McReynolds’s opinion in Meyer never refers to the First Amendment or to freedom of speech). And while those discomfited by Fourteenth Amendment substantive due process might like to save Meyer (and Pierce v. Society of Sisters, decided a couple years later) now by turning them into free speech cases, there’s something cavalier about Justice Fortas’s anachronistic treatment of Meyer. And then there’s the fact that the defendant in Meyer was a German language teacher (not the student), and Justice McReynolds refers throughout to the rights of teachers and parents but only once to any “rights” of students (the statute “interferes…with the opportunities of pupils to acquire knowledge”). 

A final note about the political currents underlying these cases. Tinker and Meyer are surely the most famous constitutional cases to come out of Iowa and Nebraska, and they reflect the two neighboring states’ different political climates. Tinker recognizes the rights of anti-war protesting students in Des Moines, Meyer recognizes the rights of traditional German-American communities in rural central Nebraska to be free of conformist state interference. Iowa is slightly more urban (relatively speaking for the Midwest) and Nebraska more rural (Iowa has nine non-suburban cities with over 50,000 people, Nebraska only three—and Grand Island only barely), reflecting the urban-rural difference between the claimants in Tinker and Meyer. Iowa has historically had more Anabaptists (there are large Amish and Mennonite communities around the Amana Colonies, for example) and liberal Protestants, including the father of the Tinker children (a Methodist minister and American Friends Service Committee member). Late ninteteenth- and early-twentieth century Nebraska had an influx of German (like the defendant in Meyer) and Eastern European Lutherans and Catholics, historically more conservative groups. And so in next week’s US Senate elections, while Ben Sasse coasts to election as a conservative Republican in Nebraska, next door in Iowa another conservative Republican, Joni Ernst—while slightly favored to win—is in a much closer race. It’s all there in the rich history of Tinker and Meyer.

October 29, 2014 in Moreland, Michael | Permalink

Tuesday, October 28, 2014

Roger Scruton on the "great spiritual inheritance" of our law and politics

The Liberty Law Talk podcasts hosted by Richard Reinsch are a wonderful resource (if you have an iPhone, you can subscribe via Apple’s podcasts app). A recent conversation with Roger Scruton was especially interesting and included the following--and typically insightful--comment from Scruton (transcribed from the recording beginning at 15:30): 

I think my position is that you can’t detach what we are now from the history of our civilization, and the very fact that we have all these really remarkable ways of dealing with social conflict like the legal process, democratic process, and so on. The fact that we have those things is not to be understood as some kind of a priori invention. These are the byproducts of a civilization which was founded on something else. It was founded on a sacramental vision of what brings people together and the church has always exerted this control over people’s lives to remind them of this. It doesn’t do so anymore, of course, because we in many ways are in a post-Christian society but it...the Catholic Church made penitence into a sacrament and made the whole business of confession, accepting guilt, atoning for your faults, and begging for forgiveness--it made that into the fundamental religious experience, more fundamental than any other, and that worked its way into the legal system and the political system of the European states. You can certainly find it there in the law of tort in English common law and you can find it in everything until recently. I think we should always remember that we are downstream from this great spiritual inheritance.

October 28, 2014 in Moreland, Michael | Permalink

Monday, October 27, 2014

Symposium on McCullen v. Coakley

Villanova hosted a noteworthy symposium recently on one of last term's major free speech cases, McCullen v. Coakley. Video of the event is available here, with remarks from Eleanor McCullen (lead plaintiff), Mark Rienzi (CUA and also Mrs. McCullen's counsel), Greg Magarian (Washington University-St. Louis), Carrie Severino (Judicial Crisis Network), and Kevin Walsh (Richmond). In addition to the significance of hearing directly from the plaintiff in such a case (as John Noonan long ago observed, we are apt to neglect the experience of actual, living persons behind a major case), the symposium was a rich conversation among participants who all (like the justices on the Court) basically agreed on the outcome of the case but for different reasons (and with different assessments of McCullen's long-term importance to such areas as public forum doctrine and content-neutrality analysis).

October 27, 2014 in Moreland, Michael | Permalink